Friday, July 27, 2012

The police have result codes, or "K" codes. So when an offence is alleged, the police investigate the alleged offence, and then for their records they issue the result in a "K code. For example, K1 is no further police action required. A K"9" is an arrest. A K"6" is a report written about the incident/offence.

The other codes they use are "active" codes. These are "10" codes. A patrol car calling in 10/2 is on the way to a job. A 10/7 call is arrived at the job. A 10/3 call, is free and mobile.

So K1, 10/3 is "attended the job, no further police action required, free and mobile".

And so the detectives who wasted their time on the Banks donation complaint are now K1, 10/3.

Various commentators concentrated on section 109 of the Local Electoral Act, which gives the requirements relating to the candidates' returns. Here's Graeme Edgeler on Public Address a while ago:

I've re-read the Local Electoral Act a few times over the last few
days, and reached a different conclusion each time over what obligations
it actually imposes.

What follows explains what I believe is the generally-accepted
approach to the obligations on candidates under the Local Electoral Act
2001 to donation disclosure.

Graeme listed a plethora of obligations, all of which are contradictory and confusing. That's because they are. The Act is a legal quagmire, and it is, as Graeme Edgeler says, "derisory". I'd call it meaningless and incomprehensible.

When the investigation was announced, another legal commentator, Andrew Geddis said this about the obligations of Banks (and others, of course):

Because, if there is a clear explanation for the whole "Banks.com"
affair that demonstrates how Mr Banks cannot be guilty of any breach of
the Local Electoral Act and shows that Mr Dotcom's account of what took
place is false ... well, we're yet to hear it.

Again, focusing on the breach. According to all and sundry, including the mainstream media, Mallard, Shearer, Peters et al, Banks broke the law. He filed a false donations return!

Yet no one looked at the offences section closely.

Firstly, the obligationsunder section 109:

Return of electoral expenses

(1)Within
55 days after the day on which the successful candidates at any
election are declared to be elected, every candidate at the election
must transmit to the electoral officer a return setting out—

(a)the candidate's electoral expenses; and

(b)the
name and address of each person who made an electoral donation to the
candidate and the amount of each electoral donation; and

(c)if
an electoral donation of money or of the equivalent of money is made to
the candidate anonymously and the amount of that donation exceeds
$1,000,—

(i)the amount of that donation; and

(ii)the fact that it has been received anonymously.

(2)Every return under subsection (1) must be in the form prescribed in Schedule 2or to similar effect.

The highlighted words or to similar effect, become important later. Remember them.

Section 133 is the first offence section.

Failure to transmit return

(1)Every
candidate commits an offence who fails to transmit a returnof
electoral expenses in the prescribed form to the electoral officer
within the prescribed period.

(2)Every
person who commits an offence against subsection (1) is liable on
summary conviction to a fine not exceeding $1,000 and, if he or she has
been elected, to a further fine not exceeding $400 for every day on
which he or she continues to act until the return is transmitted.

You should now read section 109(1) again. It says a candidate must transmit a return of electoral expenses and donations. Under section 133, failing to transmit a return of expenses is an offence. But section 133 is silent on whether it is an offence if a candidate fails to file a donations return. You have to file one under section 109, but it is not listed as an offence if you don't.

Here's a further "offence"section (134) of the Local Electoral Act regarding, apparently, donations:

False return

(1)Every
candidate commits an offence who transmits a return of electoral
expenses knowing that it is false in any material particular, and is
liable on conviction on indictment to imprisonment for a term not
exceeding 2 years or to a fine not exceeding $10,000.

(2)Every
candidate commits an offence and is liable on summary conviction to a
fine not exceeding $5,000 who transmits a return of electoral expenses
that is false in any material particular unless the candidate proves—

(a)that he or she had no intention to mis-state or conceal the facts; and

(b)that he or she took all reasonable steps to ensure that the information was accurate.

Two offences, relating to electoral expenses. No offences listed relating to filing false donations returns. But surely these are the same thing?

The definitions of electoral expenses and electoral donations are in section 104. They've been given different definitions. Naturally that's because they are different. What candidates spend is completely different to the donations they receive.

Section 3, the purpose section, lists as a purpose, the following:

adopt uniform rules in relation to—

(vi)offences against this Act and penalties for those offences; and...

So the purpose is pretty clear. The Act lists the offences, and the penalties. But the Act does not list as an offence transmitting a false donations return. It only stipulates the transmission of a false expense return as an offence.

When lawyers interpret legislation, they look at the principles of the Act as well as the Act's purpose. What are the principles of the Local Electoral Act 2001?

Principles

(1)The principles that this Act is designed to implement are the following:

(2)Local
authorities, electoral officers, and other electoral officials must, in
making decisions under this Act or any other enactment, take into
account those principles specified in subsection (1) that are applicable
(if any), so far as is practicable in the circumstances.

(3)This section does not override any other provision in this Act or any other enactment.

Conclusion? Not only did Banks not breach any law, there was/is no law in the Act for him to break. Moreover, no candidate since 2001 has been required to file adonations return, and even if they had and it was intentionally false, it wasn't an offence.

I considered whether Schedule 2 to the Act imposes an obligation to submit the same information in the same return (i.e. a return of expenses and donations together, and both have to be correct).

But remember those words or to similar effect that I earlier said were important. They mean that the pro- forma expenses return form is just that - a pro-forma. Candidates can use what they like. They could use a separate form for expenses than they use for donations. They could submit a few pages of an expenses return (they have to as they break the law under section 133 if they don't), but they could just refuse to file a donations return; or they could file a completely wrong donations return and both of those are not offences under the Act.

Section 109 is headed up Return ofElectoral Expenses. That vital word "donations" is again omitted. That is important, as are the other omissions of the same word, because of section 5 of the Interpretation Act 1999:

Ascertaining meaning of legislation

(1)The meaning of an enactment must be ascertained from its text and in the light of its purpose.

(2)The
matters that may be considered in ascertaining the meaning of an
enactment include the indications provided in the enactment.

(3)Examples
of those indications are..headings to Parts and sections..and the organisation and format of
the enactment.

The header of section 109 can be used to interpret it. The header omits mentioning donations. Sections 133 & 134 omit them. The purpose and principles sections fail to mention them.

My conclusion is that it is not even an offence to fail to file a donations return; and it is not an offence to file a false return.

The person who should be prosecuted in all this is Trevor Mallard. He was a Minister in the Helen Clark government in 2001 when this law was passed. He was part of introducing shabby legislation that he tried to wrongly use against John Banks.

That is shameful. Mallard is the person who should be investigated. I'd love to see him in the dock.

Well dickhead, at a minimum he's guilty of lying to New Zealanders about his close personal friendship with Dotcom (helicopter rides he forgot about, birthday parties he proposed toasts at, fireworks displays he was guest of honour at) and the fact that he solicited donations from him and Sky City and thanks the donors for them. He also told Dotcom how he thought he could get round the disclosure regime in electoral laws, even though Dotcom didn't care about whether the donation was anonymous or not.

This guy's a Minister of the Crown in John Key's government. Fantastic!

The whining differential supports the party of many electoral manipulations and rorts, too many to list here but sees only a problem with a National support party person whose alleged transgressions relate to a Local Body election prior to re-election to this parliament.

Whining transmission uses the accusation of my poor language abilities to avoid debating issues.I normally ignore the supercilious pedantic whining socialist numpty. When he does it on my posts the delete button is my weapon of choice.

I guess the sludge, being a pinko of clearly limited vision, allows your impression of occluded views from his soiled spectacles as an accurate assessment Adolf.

As for whining, if you can stand it go back and try and read some of your posts. As far as it's possible to tell, you seem to spend your entire time bitching and moaning. You should find something more productive to do with the few years you have left. A night class in basic writing skills would be a good start.